The Bill intends to facilitate e-commerce and remove legal uncertainties created by the new technology age. However, it cannot be viewed as a holistic legal framework for information technology in India. Apart from possible deficiencies in its specific provisions, only the commercial and criminal areas of law as affected by information technology have been addressed. The Bill does not deal with a multi-tude of issues, ranging from intellectual property rights and content regulation to privacy and data protection. Specific legislation in these areas is also required.

The Bill has five basic components: Digital signatures, electronic records and certifying authorities; violations; offences; mechanisms, procedures and authorities to support the above and appropriate amendments to other statutes. The first component seeks to provide legal recognition to electronic records and authentication mechanisms for their creation and transmission.

In this direction, it also deals with digital signatures, certifying authorities and a controller of certification authorities (CCA). This is the most crucial part of the Bill since it is expected to pave the way for widespread adoption of the Internet as a vehicle for commerce in India. Sections 3 to 13 are sweeping in their potential impact on our communication and documentation systems.

They give legal sanction to the use of electronic equivalents of written documents and signatures in all cases where the law may require the non-electronic forms. Sections 3 to 7, pertaining to electronic records and digital signatures are, by far, the most simple and aesthetically structured parts of the entire Bill. Wherever the law requires that information or any other matter shall be in writing, typed or in printed form, then such information can be provided as an electronic record. Similarly, digital signature may be a substitute where authentication by way of signature is required by law.

Sections 6 empowers the government to provide for electronic filing, issuing of licenses, permits, sanctions and approvals as well as payments and prescribe the manner in which it should be done. How-ever, a limitation on this entire series of provisions is section 1, clause (4), which states that nothing in the Bill shall apply to negotiable instruments, power-of-attorney, trusts, testamentary dispositions (wills), contracts for sale or conveyance of immovable property or any interest in such property. It also covers any class of documents or transactions as may be notified by the Central Government.

The impact of this limitation is far-reaching. It ensures that e-commerce in India will be limited to payment systems that are non-traditional or credit card based. It seeks to prevent effective evolution of payment mechanisms. Banks will not be able to extend their traditional services in a seamless manner to the online medium. A clear demarcation is sought to be made between on-line transactions and off-line transactions.

Non-application of the Bill to contracts for sale or conveyance of immovable property may prevent trading in securities where the underlying security is immovable property. This may act as a bar in the case of derivatives trading, too. In the absence of concrete clarifications on the issue, the coast is still not clear. It is also to be noted that the non-applicability of the Bill to Trusts could have widespread implications, specially considering the fact that most of the mutual funds in India are structured as Trusts.

This restriction could prevent on-line transactions, including subscription and redemption of mutual fund units over the net. This issue will need to be addressed by the appropriate regulatory authorities. The second component is covered by Chapter IX and X. Chapter IX (Penalties Chapter) includes provisions, specifically section 43, that penalise, in general terms, activties that would amount to hacking, cracking, phreaking, virus insertion, et al. It would be better if such activities were penalised only when the offence was committed intentionally.

A clarification is also necessary as regards the creation of viruses, trojans and other variants is concerned. Such creation may not fall under section 43 (c) which uses the words `introduces or causes to be introduced’. A specific section may be necessary for the removal of any confusion that may arise in interpreting this clause. Another aspect that may require revision is section 45 (residuary penalty clause) which caps the maximum compensation payable at twenty-five thousand rupees. A percentage cap may perhaps be more suitable. The third component expressly details offen-ces under the Bill and prescribes penalties for the same. Offences can be distinguished from the prohibited acts in that they are acts of a higher degree in terms of their political incorrectness and the persons committing the act. Offences under Bill are also punishable with higher penalties (including imprisonment).

The enforcement mechanism for the acts falling under the Penalties Chapter can be categorised into the following: Adjudicating officer appointed by the Central Government to hold inquiries and penalize in accordance with the provisions of the Bill; appellate au-thority established by notification by the Central Government and lastly an appeal to High Court on any question of fact or law. Section 61 ousts the jurisdiction of the civil courts in respect of matters that the adjudicating officer or the appellate authority are entitled to take up.

However, the Bill is unclear on procedure and there is no clear demarcation of offences under Chapter XI, and acts punishable under the Penalties Chapter. The enforcement mechanism for offences seems to be the criminal justice system. Yet, the need for such a chapter in addition to amendments to the Indian Penal Code (IPC) (Schedule I) is questionable. Moreover, there may be instances where an act is punishable under all three—Penalties Chapter, Offences Chapter and the IPC.

In such a situation, the jurisdiction of the respective bodies may need clarification. Chapter X envisages the creation of one or more single-member appellate authorities called Cyber Regulations Appellate Tribunals (CRAT). It remains to be seen whether the persons appointed to the posts created under this Bill possess the requisite expertise to adjudicate on the complexities inherent in techno-legal issues.

The qualifying requirements suggested under the Bill are not encouraging. A positive aspect of CRAT, however, is that it is not bound by the procedures laid down by the Code of Civil Procedure and is to be guided by the principles of natural justice. It has been given powers to regulate its own procedure including its place of sitting.

It also has the option to exercise powers vested in a civil court under the Code of Civil Procedure,1908. An important aspect of the Bill is Chapter XII which deals with the liability of network service providers in cases of information hosted by the provider. The Chapter contains a single provision that declares that the provider is not liable where the offence or contravention by a third party is committed without his knowledge or when he has exercised due diligence.

The onus of proof, however, still rests on the service provider. This is in tune with the US Digital Millenium Copyright Act which absolves the liability of Internet service providers in similar circumstances. The latest draft is more thoughtfully drawn compared to pre-tabling releases.

It would be better if a Request-For-Comments model of legislative drafting is implemented that offers an opportunity for the involvement of all interested persons and organizations in the drafting process. Such a model that is transparent to Internet users or the public, coupled with open forums and the like would certainly be more democratic than the processes provided under our constitution. That after all, is the promise of the Internet